Date: 20080717
Docket: IMM-2553-08
Citation: 2008 FC 882
BETWEEN:
JAMES
COREY GLASS
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
FRENETTE D.J.
[1]
This
is a motion to stay the execution of a removal order rendered against the
applicant to the U.S., scheduled to be executed on July 10th,
2008. I granted the stay on July 9th, 2008 and here are my reasons.
[2]
I
have rendered a decision with my reasons in a case between the same parties considering
the refusal of the Officer in a Pre-Removal Risk Assessment (PRRA) application.
The instant review is of the decision of the same Officer, rendered on June 21,
2008, refusing the applicant’s request for permanent residency based upon
humanitarian and compassionate (H&C) application.
[3]
The
background facts and reasons are to be found in the above mentioned decision.
I. Summary background
[4]
The
applicant is a citizen of the United States (U.S.) who came to Canada on August
6, 2006, claiming refugee status, to avoid serving in Iraq as a member
of the U.S. Army.
[5]
He
had served in Iraq during six
months, where he claims to have observed “gross human rights violation committed
against Iraqi civilians and “gross misconduct” by U.S. soldiers.
II. The issues
[6]
The
applicant submits that Officer erred in dismissing his establishment despite
finding that he had demonstrated a substantial degree of establishment in Canada, was
self-sufficient and was involved in the community, solely because he possessed
a work permit. The applicant contends that this decision was unreasonable. He pleads
that his removal would cause irreparable harm if he were returned to the U.S. because he would
face persecution as an army deserter and be subject to incarceration on the
basis of his public denunciation of the illegality of the Iraqi war, taking
into consideration the recent crackdown on army deserters.
[7]
He
also argues that if returned to the U.S. his application in Canada would become
moot. The respondent contests these arguments claiming they are not founded
either on fact or in law.
III. Analysis
[8]
Although
the test in a PRRA assessment and the one on an application for permanent
residence based upon H&C grounds are not the same, the reasons I gave in
file IMM-2552-08 apply to this case.
[9]
I
believe that the applicant should be given the opportunity to present his case
in a judicial review, especially in light of the fact that the Officer refused
to consider new evidence (2007-2008) which indicated that the legality of the
war in Iraq is contested and that the difficulty in recruiting new soldiers has
caused a crackdown on deserters, especially those who have publicly denounced
that war.
[10]
The
other serious issue raised is the question of mootness of the judicial review proceedings
if the applicant is removed from Canada, see: Perez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 663, [2008] F.C.J. No. 836 (QL).
[11]
In
conclusion, the applicant has satisfied all the conditions required for a stay
of removal established by the Federal Court of Appeal decision in Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123
(F.C.A.).
WHEREFORE, THIS COURT grants the application
for a stay of execution of the removal order until:
i.
the
disposition of the latest leave application; and
ii.
if
leave is granted, until such time as the sections 18 and 18.1 application is
disposed of by this Court.
"Orville
Frenette"
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